Bandesh Jidage and Gajanand Sawaleshwar vs The State

Anand Byrareddy, J.—Heard the learned counsel for the petitioners in Criminal petition No. 16205/2012 as well as the counsel for the petitioners in Criminal petition No. 15022/2013 and 15023/2013. These petitions are heard and disposed of together having regard to the fact that the petitioners are all accused in respect of the same case. The petitioners in the first of these petitions are accused Nos. 7 and 10. Whereas the petitioner in the second of these cases is accused No. 5 and petitioner in the third of these cases is accused No. 11. The facts leading up to these cases are as follows:

The complainant, one Giriappa, the uncle of deceased Nagesh was employed as a Pump operator at Bangarga village, Aland Taluk, Gulbarga District. It transpires that Nagesh was appointed as a pump operator on compassionate grounds, when the complainant''s brother Bapuraya died about three years prior to the incident. The job involved Nagesh operating several pumps in the village every evening between 5.00 p.m. and 8.00 p.m. It transpires that on 28.05.2012 at about 5.00 p.m. he left for work as usual and did not return. His wife was worried when he did not return for more than one hour after his usual time and therefore has informed the complainant and told him that she was worried as Nagesh was not answering his cell phone and therefore they should search for him. It transpires that the complainant informed one Rajendra and Rajendra also tried to contact Nagesh on his cell phone, which was in vain. Later on it transpires that for several hours they searched in all the places that Nagesh was known to frequent but he could not be found. Therefore, on the next day, that is on 29.05.2012, the complainant Sitabai and other family members lodged a missing complaint by way of abundant caution before the Aland police. It is further alleged that there was no trace of Nagesh. On 01.06.2012, one Hanamanth a neighbour and relative of the complainant had informed the complainant that on 28.05.2012 between 6.30 and 7.00 p.m. when Hanamanth and Sopan Jyeshi were returning from Aland and had alighted from a Bus and were proceeding along the road to reach their village, they had seen a jeep which was parked with its bonnet up and there were several people inside including the deceased. There was an apparent break down and the vehicle was being repaired by somebody. When Hanamanth and Sopan Jyeshi on recognizing Nagesh tried to speak to him but the other persons present threatened them and has chased them away and said that they should not speak to him or they would face the consequences. Since this was done in menacing manner, Hanamanth and Sopan Jyeshi left the place without any further protest. They had also named the other persons sitting in the jeep as they were also from the same village namely Vishwanath, Gajanand, Satish, Parameshwar, Arun and also some others. It was Arun and Dharmaraya who had threatened and chased them away. Though they did not suspect that there was any foul play, it is only after Nagesh had failed to return for several days that they thought it fit to inform the complainant. This was also in consonance with the fact that there had been an earlier altercation between the deceased and the accused on the occasion of Basava Jayanthi and the quarrel had been broken up by the villagers who had pacified them. One other reason for there being animosity between the deceased and the accused was that there was a women by name Kantabai Kamble and it transpires that some of the accused would constantly visit Kantabai Kamble''s house and the deceased had taken offence and had protested and he had protested they should not visit the woman''s house so often. This had angered the accused. Therefore, the complainant had again approached the police and revealed the subsequent information that she had gathered. On the basis of such information the police carried out further investigation and during the course'' of enquiries C.W. 31 Bharamanand came forward to state further that on 26.05.2012 he had finished his work on his field and he was resting near the bund separating his land from that of accused No. 1 and he had over-heard the accused who had gathered there speaking to each other, though they did not see him or note his presence. He over heard the accused persons conspiring amongst themselves to put an end to Nagesh as had become a menace and he was acting too big for his boots and therefore he ought to be killed. Further it transpires that he did not attach much significance to the discussion. However, on 28.05.2012, when he was about to leave his field in the evening he noticed that there was a jeep parked near the field of accused No. 1 and he saw accused No. 7, namely, the petitioner in Criminal Petition No. 16025/2012 lead the deceased from the jeep and he found that he was gagged with a cloth. Thereafter; the other accused namely accused No. 10 the second petitioner in Criminal Petition No. 16025/2012, the accused No. 5 the petitioner in Criminal Petition No. 15022/202 and accused No. 11 the petitioner in Criminal Petition No. 15023/2012, standing watch around the field looking out for any on lookers or other passers-by when the deceased was lead up to accused No. 1 who was armed with a ''Kuda'' and it is alleged he struck the deceased on his head And with that one blow he died on the spot. Thereafter the accused had stuffed the dead body into a gunny bag and left in the jeep. It is this account of C.W. 31 which has completed the investigation for the police in all the accused being taken into the custody and proceedings being initiated against them. The accused No. 3, 4, 8 and 9 have been enlarged on bail on their petitions by this court on various dates in independent petitions filed by them.

The learned counsel for the petitioners in the above background would submit that the case of the prosecution rests on the circumstantial evidence on the basis of statement made by C.W. 29 and 30 namely Hanamantha and Sopan Jyeshi who saw the deceased in the company of the accused on 28.05.2012 and the eyewitness on account of C.W. 31 who has actually witnessed the alleged incident and participation of all the accused in the same. This court has granted bail on certain terms and conditions to the several accused named herein above though their participation or the overt acts attributed to them was akin to the overt acts attributed to accused Nos. 10, 5, and 11. Therefore on a parity of reasoning the learned counsel for the petitioner would submit that since this court has already opined, in respect of identical overt acts attributed to the other accused being entitled to be enlarged on bail, it should follow that accused No. 10, 5 and 11 also be enlarged on bail. Further, in so far as accused No. 7 is concerned it is pointed out that the reliance being placed on the evidence of C.W. 31 who alone has spoken about the overt acts attributed to accused No. 7, to the effect that he saw accused No. 7 lead Nagesh from the jeep, the learned counsel would submit that the very fact that C.W. 31 was in a position to over-hear the conspiracy amongst the accused on 26.05.2012 And thereafter he again witness the incident at the very spot the conspiracy was hatched and that on 28.05.2012, he saw in graphic detail the manner in which the incident has taken place, is a coincidence that ought to be negated. The fact that there were several of the accused who were said to be keeping watch but he had even then witnessed the entire incident in the proper sequence, is difficult to believe. Admittedly the incident has taken place at around 7.00 p.m. when there was little or failing light and for the said witness to have furnished such graphic description of the incident, when even according to him the several accused were standing around the field and keeping watch for on-lookers or passers-by, the claim ought not to be lightly accepted. As it is a concocted story to implicate the accused especially accused No. 7 in attributing the overt act that he lead Nagesh from the jeep and would submit that denial of bail to accused No. 7 on the say of the said C.W. 31 would lead to a miscarriage of justice. It can only be at the trail for the prosecution to establish this allegation beyond all reasonable doubt. Therefore, even if the role of accused No. 7 is to be accepted, when the participation of the other accused who have been enlarged on bail is no less, and if the court has thought it fit to enlarge them on bail, it stands to reason that the benefit of bail should also extend to accused No. 7

While the learned Additional State Public Prosecutor would strongly oppose the bail petitions and he would even submit that each of these bail petitions ought to be considered independently and that the same being addressed together would lead to a situation where the accused whose role is different and distinct would be enabled to plead parity of reasoning in seeking bail And that in the face of an eyewitness account as to the active participation of the accused, enlargement on bail any of them would lead to the said accused possibly putting themselves out of reach of the law and which would seriously impair the trial. Therefore, would oppose the bail application. The circumstances of the case would indicate a deliberate and premeditated gruesome murder of the deceased. Therefore, the complicity of all the accused cannot be overlooked, no matter if it was only accused No. 1 who had dealt the blow that had killed the accused, the active participation of all others was necessary for the said accused to have been enabled to commit the murder of the deceased. Therefore, the nexus is total and there can be no lenience in so far as the granting of bail to the petitioners are concerned.

This the learned Additional State Public Prosecutor would submit in the face of this court already having granted bail in respect of other accused who were similarly placed as most of the accused in these petitions. In the above facts and circumstances as pointed out by the learned counsel for the petitioners the eyewitness account of C.W. 31 would have to be established beyond all reasonable doubt. The coincidence is unusual and in the face of the circumstance that it was almost night fall and there were people according to the very witnesses who were standing watch while the incident took place. It is indeed strange that the witnesses was not noticed, however surreptitious his witnessing the incident was said to be. Therefore it is only the statement of the said witness, which has implicated accused No. 7 in a different light vis-a-vis the other accused. Therefore, this court is of the opinion that on a parity of reasoning, accused Nos. 10, 5 and 11 are entitled to be enlarged on bail. Since, the other accused who were similarly attributed with the very overt acts attributed to these petitioners have already been enlarged on bail on terms, by this court. Further, in so far as accused No. 7 is concerned as rightly pointed out by the learned counsel for the petitioner the manner in which a overt act is attributed to the said accused would have to be decided; at the trial court and in the meanwhile to incarcerate the said accused indefinitely would certainly lead a miscarriage of justice. Therefore, he is also entitled to be enlarged on bail.

Hence, the petitions are allowed. The petitioners shall execute self-bonds for a sum of Rs. 50,000/- each, with a solvent surety for a likesum, to the satisfaction of the trial court.

The petitioners shall not leave the jurisdiction of the Court below, without the leave of the court.

They shall not in any manner, seek to tamper with the prosecution evidence.

The petitioners shall attend the court below on all dates of hearing in the proceedings that would ensue. The petitioners shall fully co-operate in the investigation of the case.